–O0O–
(THE FOLLOWING OCCURRED OUT OF THE PRESENCE OF THE JURY:
THE COURT: OKAY. IN THE WESTERFIELD MATTER THE RECORD WILL REFLECT THE APPEARANCE OF COUNSEL, MR. WESTERFIELD, JURORS AND ALTERNATES NOT BEING PRESENT, THE COURTROOM BEING OPEN TO THE PUBLIC.
MR. FELDMAN, I’VE JUST REVIEWED THE AMENDED PROPOSED SUPPLEMENTAL INSTRUCTIONS. THEY APPEAR TO BE IN, FOR LACK OF A BETTER WORD, A SHOTGUN APPROACH. SO I’M GOING TO — WHOEVER IS GOING TO TALK ON BEHALF OF THE DEFENSE TO INTERJECT THEM IN THE APPROPRIATE LOCATIONS THAT YOU BELIEVE THEY SHOULD BE PLACED.
IN ADDITION TO THAT, I HAVE RECEIVED A SUPPLEMENTAL MEMORANDUM FILED BY THE DEFENSE REGARDING DEFINING MURDER AS IT RELATES TO THIS CASE. SO I HAVE REVIEWED ALL OF THOSE ITEMS.
YOU SHOULD ALSO KNOW THAT MR. NEAL METHVIN WILL BE JOINING US THIS MORNING. I HAVE INSTRUCTED HIM TO BE HERE AT 10:00 O’CLOCK SO HE CAN GIVE HIS REPORT ON THE NUMBER OF SUMMONS THAT WERE SENT OUT FOR THE WESTERFIELD MATTER SO THAT WE CAN ALLOW YOU TO MAKE YOUR RECORD, MR. FELDMAN.
MR. FELDMAN: THANK YOU, YOUR HONOR.
THE COURT: OKAY.
WHAT I WOULD LIKE TO DO IS GO THROUGH THE PACKAGE AS IT CURRENTLY EXISTS WITH THE IDEA THAT WE WILL RESOLVE ANY LINGERING MATTERS THIS MORNING SO THE COURT WILL BE PREPARED TO PROCEED ON TUESDAY, DEPENDING ON WHERE WE’RE AT.
ALL RIGHT. FIRST OF ALL, THE COURT WILL GIVE 1.00.
1.01.
1.02.
1.03 I HAD RESERVED BECAUSE THERE WAS SOME INDICATION WE MIGHT HAVE A FOREIGN INTERPRETER OTHER THAN SIGN. AND I HAVE NOT HEARD IT. SO I’M ASSUMING THAT WE JUST NEED TO LEAVE SIGN LANGUAGE IN THERE.
MR. FELDMAN: YES, YOUR HONOR.
MR. DUSEK: YES.
THE COURT: ALL RIGHT.
1.05 WILL BE GIVEN AS I PREVIOUSLY MODIFIED IT.
2.00 WILL BE GIVEN.
2.01 WILL BE GIVEN. AND I’LL INDICATE THE OBJECTIONS PREVIOUSLY NOTED ON OUR INITIAL INTERVIEW WILL BE REAFFIRMED FOR PURPOSES OF THIS RECORD.
2.06 WILL BE GIVEN AS PREVIOUSLY MODIFIED OVER THE OBJECTION OF THE DEFENSE.
2.09 WILL BE GIVEN.
2.11.
2.13 WILL BE GIVEN.
ALL RIGHT. THAT BRINGS US TO 2.16. AND IN THAT REGARD I’M NOT SURE WHERE IT’S AT, BUT I DO REMEMBER JUST READING ANOTHER PROFFERED INSTRUCTION. I’LL INDICATE FOR THE RECORD THAT I AM SEPARATING THE PACKAGE PRESENTED BY THE DEFENSE TO GET ACCESS TO THE PROPOSED INSTRUCTIONS.
MS. JONES: YOUR HONOR, OUR MODIFICATION ON 2.16 IS ON PAGE 6. IT’S PROPOSED SPECIAL NUMBER 7. I HAVE THAT ON PAGES 6 AND 7.
THE COURT: OKAY.
ALL RIGHT. PEOPLE’S RESPONSE.
MR. DUSEK: WE JUST GOT IT. WE HAVEN’T EVEN HAD A CHANCE TO READ THROUGH IT ALL. RIGHT OFF THE BAT I SEE SOME ARGUMENTATIVE LANGUAGE IN HERE ABOUT YOU HAVE TO PROVE SOMETHING BEYOND A REASONABLE DOUBT BEFORE YOU CAN EVEN CONSIDER IT. I SEE THAT THEY’VE LEFT OUT SOME CORROBORATION LANGUAGE IN CALJIC. AND THESE FACTORS THAT THEY’VE LISTED WE HAVE NOT HAD, LOOKS ARGUMENTATIVE, AND DOES NOT EVEN TRACK WHAT IS IN CALJIC. CALJIC SHOULD BE GIVEN.
IF WE’RE GOING TO CONSIDER ANYTHING, IT SHOWED UP TEN SECONDS AGO, WE WOULD ASK TIME TO REVIEW THAT MATERIAL.
THE COURT: ALL RIGHT.
JUST SO THAT WE CAN GET THROUGH THIS MATERIAL, I’LL ALLOW YOU AS MUCH TIME AS YOU NEED TO REVIEW THE ONES THAT ARE ATTACHED. THE COURT JUST READ THEM MYSELF. SO. . .
ALL RIGHT. WE WILL BE IN RECESS UNTIL YOU GIVE US THE HIGH SIGN.
[RECESS, 9:45 O’CLOCK, A.M., TO 10:08 O’CLOCK, A.M.]
THE COURT: ALL RIGHT. THE RECORD WILL REFLECT MR. WESTERFIELD IS PRESENT, ALONG WITH COUNSEL.
COUNSEL, BEFORE WE GO INTO THE JURY INSTRUCTIONS, MR. METHVIN IS HERE. AND I THINK IT APPROPRIATE THAT WE TAKE THE STATISTICS HE’S BROUGHT WITH HIM SO HE CAN RETURN TO HIS JOB.
MR. METHVIN, IF YOU WOULD KINDLY RAISE YOUR RIGHT HAND SO YOU CAN BE SWORN.
/ / /
/ / /
/ / /

WARREN NEAL METHVIN, JR.,
CALLED AS A WITNESS BY THE DEFENDANT, HAVING BEEN DULY SWORN, TESTIFIED AS FOLLOWS:
THE COURT: PLEASE STATE YOUR FULL NAME, SPELLING YOUR LAST FOR THE RECORD.
THE WITNESS: MY FULL NAME WARREN NEAL METHVIN, JR. LAST NAME IS SPELLED M AS IN MARY E-T-H-V AS IN VICTOR I-N.
THE COURT: AND YOUR CURRENT POSITION WITH THE COUNTY?
THE WITNESS: I AM THE MANAGER OF THE JURY SERVICES OFFICE FOR THE SUPERIOR COURT.
THE COURT: AND DID THIS COURT REQUEST THAT YOU PREPARE A COMPLETE BREAKDOWN OF ALL OF THE SUMMONS THAT WERE ISSUED FOR THE APPEARANCE DATE OF THE INITIAL PANEL IN THE MATTER OF PEOPLE VERSUS DAVID WESTERFIELD?
THE WITNESS: THE COURT, INDEED, DID.
THE COURT: AND HAVE YOU DONE THAT?
THE WITNESS: YES, SIR.
THE COURT: COULD YOU GIVE US YOUR REPORT.
YOU CAN HAVE A SEAT, NEAL; YOU DON’T NEED TO STAND UP.
THE WITNESS: ALL RIGHTY. THANK YOU, YOUR HONOR.
WE NORMALLY ON A FRIDAY WILL SCHEDULE TO BE IN THE JURY LOUNGE APPROXIMATELY 100 PEOPLE FOR A NORMAL FRIDAY. AND I SUMMONS 1,250 PEOPLE IN ORDER TO HAVE APPROXIMATELY 100 ON A FRIDAY. BECAUSE OF THIS CASE, YOU REQUESTED APPROXIMATELY 350 PEOPLE BE AVAILABLE FOR THE WESTERFIELD TRIAL. I ISSUED 4,375 SUMMONSES, FOR A GRAND TOTAL OF 5,625 SUMMONS.
IT HAPPENED TO BE ON THAT FRIDAY THAT THERE WERE NO OTHER CASES. I CHECKED WITH THE COURT, AND THE COURT SAID LET’S USE THEM ALL. AND THAT’S WHAT WE DID.
SO THAT MORNING WE HAD ACTUALLY 611 PEOPLE THAT APPEARED FOR JURY SERVICE. WE WENT THROUGH OUR NORMAL ORIENTATION PROCESS. AND THAT BASICALLY SAYS IF YOU DON’T HAVE TWO WEEKS OF AVAILABILITY AND ABLE TO TAKE A NORMAL COURT CASE, THEN PLEASE DO NOT REMAIN. WE LOST 140 PEOPLE THAT MORNING. THAT LEFT 471 PEOPLE FOR THIS CASE.
AND ON MAY THE 17TH THE COURT ACTUALLY CONDUCTED HARDSHIP EXCUSES. AND 207 OF THE 471 REMAINING JURORS WERE EXCUSED BY THE COURT ON HARDSHIPS, WHICH LEFT 263 JURORS THAT FILLED OUT QUESTIONNAIRES.
THE COURT: OKAY.
ANY COUNSEL HAVE ANY QUESTIONS OF MR. METHVIN?
MR. FELDMAN: PLEASE. THANK YOU.
THE COURT: SURE.

DIRECT EXAMINATION
BY MR. FELDMAN:Q.: SIR, WE STARTED AT 5,625?A.: YES, SIR.Q.: AND WE ENDED UP WITH 263?A.: THAT IS CORRECT.Q.: IS THERE ANY PROVISION THAT YOU HAVE — LET ME ASK YOU THIS: DID CERTAIN PEOPLE WHO WERE SUMMONED NOT SHOW UP?A.: YES, SIR. THEY SURE WERE. WE HAD 530 PEOPLE WHO CALLED IN OR WROTE IN TO BE POSTPONED TO A DIFFERENT DATE. WE HAD — WE HAVE AN IN-HOUSE RULE WHERE JURORS MAY REPORT UP TO TWO WEEKS BEFORE OR EVEN UP TO TWO WEEKS AFTER THEIR REPORTING DATE JUST BECAUSE THE DATE WE ARBITRARILY PICK FOR THEM DOESN’T WORK. WE HAD 25 WHO ACTUALLY SHOWED UP PRIOR TO THE MAY 17TH DATE. WE HAD 3,331 WHO WROTE TO US AND HAD LEGAL, LEGITIMATE EXCUSES TO BE EXCUSED FROM JURY SERVICE. AND THERE WERE 1,268 WHO FAILED TO APPEAR.Q.: OF THE 1268 WHO FAILED TO APPEAR, ARE THERE ANY INSTITUTIONAL OR BUILT-IN PROCESSES THAT YOU HAVE TO, I DON’T KNOW IF I WANT TO USE THE WORD CAPTURE, BUT TO BRING THEM TO THE JURY COMMISSIONER SO THAT THEY CAN ULTIMATELY APPEAR FOR JURY SUMMONS OR JURY DUTY?A.: CURRENTLY WE DO NOT HAVE AN IN-HOUSE PROCEDURE. I CAN TELL YOU THAT HISTORICALLY WE HAVE HAD A FULL-BLOWN F.T.A. PROCEDURE WHERE WE WOULD START OFF WITH THE ORIGINAL SUMMONS, THEN SIX WEEKS LATER WE WOULD ISSUE ANOTHER ONE WITH STRONGER LANGUAGE. SIX WEEKS AFTER THAT WE WOULD ISSUE A THIRD SUMMONS WITH VERY STRONG LANGUAGE. AND THEN FINALLY WE WOULD SEND OUT A CERTIFIED LETTER INDICATING THAT YOU ARE ABOUT TO HAVE AN ORDER TO SHOW CAUSE ISSUED.
AND WHEN WE WENT THROUGH OUR FULL-BLOWN F.T.A. PROCEDURE, THE FAILURE TO APPEAR PERCENTAGE DROPPED TO 4 PER CENT. BUT THAT DIDN’T HELP OUR YIELD ONE IOTA. ALL IT DID WAS GET THE FOLKS TO WRITE IN WHO HAD LEGITIMATE REASONS TO BE EXCUSED.Q.: I’M SORRY. JUST SO OUR RECORD IS CLEAR, YOU’RE USING F.T.A. TO MEAN FAILURES TO APPEAR, IS THAT RIGHT, SIR?A.: YES, SIR.Q.: SO THEN OF THE 1,268 FAILURES TO APPEAR, WAS THERE EVER ANY FOLLOWUP CONDUCTED AS TO THOSE SPECIFIC INDIVIDUALS?A.: NO, SIR.Q.: THEN YOU TOLD US ULTIMATELY I GUESS ON THE FRIDAY WHICH I BELIEVE WAS 5/17, — IS THAT RIGHT, SIR?A.: YES, SIR.Q.: — 611 FOLKS APPEARED.A.: YES.Q.: BUT WE LOST 140 TO HARDSHIP, IS THAT RIGHT?A.: RIGHT AT THE TOP OF THE ORIENTATION WE ALWAYS EXPLAIN THAT WE NEED TO HAVE JURORS FOR A PERIOD OF TWO WEEKS, THE AVERAGE CASE IN SAN DIEGO BEING APPROXIMATELY FOUR AND A HALF DAYS, BUT WITH MANY CASES RUNNING SEVEN, EIGHT, OR NINE DAYS, THAT IF YOU DO NOT HAVE AT LEAST TWO WEEKS OF AVAILABILITY, PLEASE GO OVER TO JURY SERVICES AND HAVE YOUR SERVICE POSTPONED TO A MORE CONVENIENT TIME.
AND, YES, WE LOST 140 RIGHT OFF THE TOP. AND THAT LEFT US A REMAINDER OF 471, WHICH HIT MY TARGET PRETTY CLOSE. 100 FOR THE NORMAL FRIDAY AND 350 FOR THIS SPECIFIC CASE.Q.: OF THE 140 OF THE ORIGINAL 611 WHO APPEARED, WHO MADE THE DECISION TO HARDSHIP THEM? IN OTHER WORDS, TO EXCUSE THEM. I’M SORRY, SIR.A.: FOR POSTPONING OR EXCUSING THOSE 140 WOULD HAVE BEEN THE DEPUTY JURY COMMISSIONERS IN THE JURY SERVICES OFFICE.Q.: IS THERE ANY FORM OF PAPERWORK THAT THESE FOLKS WOULD HAVE HAD TO PREPARE?A.: YES. THEY — ON THE BACK OF THE SUMMONS WE HAVE A NUMBER OF CATEGORIES THAT ALLOWS THEM TO FILL IT OUT AND BE EXCUSED OR POSTPONED. AND IT IS IN WRITING.Q.: AND ARE THOSE RECORDS RETAINED?A.: YES, SIR.Q.: AND YOU HAVE THEM RETAINED IN THE ORDINARY COURSE OF BUSINESS, IS THAT RIGHT, SIR?A.: YES, SIR.Q.: WHAT WAS, THEN, THE TOTAL PERCENTAGE OF PEOPLE THAT DID NOT SHOW UP AS THEY WERE SUPPOSED TO SHOW UP?A.: 22.54 PER CENT WERE IN WHAT I CALL OUR FAILURE TO APPEAR.
[DISCUSSION OFF THE RECORD BETWEEN MR. FELDMAN
AND MR. BOYCE.]
MR. FELDMAN: THANK YOU VERY MUCH, YOUR HONOR.
THANK YOU, SIR.
THE COURT: OKAY.
ANYTHING FROM THE PEOPLE?
MR. CLARKE: NO. THANK YOU.
THE COURT: ALL RIGHT.
MR. METHVIN, THANK YOU VERY MUCH FOR COMING IN. YOU’RE INSTRUCTED OR YOUR OFFICE IS INSTRUCTED TO MAINTAIN THE RECORDS AS WELL AS ALL THE WRITTEN DOCUMENTATION YOU HAVE ON THIS PARTICULAR DATE UNTIL FURTHER COURT ORDER.
THE WITNESS: YES, SIR.
THE COURT: ALL RIGHT.
THANK YOU FOR COMING UP.
MR. FELDMAN: YOUR HONOR, THANK YOU VERY MUCH.
THE COURT: ALL RIGHT.
[THE WITNESS WAS EXCUSED.]
THE COURT: OKAY. WHEN WE HAD LEFT OFF, I WAS AWAITING THE PEOPLE’S RESPONSE AS TO THE MODIFIED 2.16 PROFFERED BY THE DEFENSE.
MR. CLARKE: YES, YOUR HONOR.
WE HAVE SEVERAL DIFFICULTIES WITH THE MODIFIED VERSION OF 2.16. IT LEAVES OUT THE CORROBORATION LAW AS STATED IN CALJIC. WE BELIEVE IT IS ARGUMENTATIVE. A FORMULA INSTRUCTION. AND THERE’S JUST NO NEED TO ALTER CALJIC.
THE COURT: ALL RIGHT.
MR. BOYCE OR MISS JONES, ANY RESPONSE?
MR. BOYCE: YOUR HONOR, IT’S IN THE NATURE OF A PINPOINT INSTRUCTION. JUST AS EYEWITNESS IDENTIFICATION TESTIMONY UNDER 2.92 DELINEATES THE SPECIFICS THAT THE JURY CAN CONSIDER IN DECIDING WHETHER OR NOT TO ACCEPT THE EYEWITNESS IDENTIFICATION OF THE PROSECUTION. THERE IS NO DOG SCENT INSTRUCTION UNDER THE CALJICS. THERE IS A DOG TRACKING. BUT IN THIS CASE WE HAVE DOG SCENT. SO WE HAVE SUBMITTED 2.16 CONSISTENT WITH AN INSTRUCTION SIMILAR TO 2.92 WHICH, LIKE I SAID, DELINEATES THE SPECIFIC FACTORS THE JURY CAN CONSIDER WHETHER DECIDING TO ACCEPT THE DOG SCENT TESTIMONY.
THE COURT: OKAY.
FIRST OF ALL, I WILL INSTRUCT MY CLERK TO STAPLE TOGETHER YOUR PROPOSED INSTRUCTION 7 FOUND AT PAGES 6 AND 7.
THE COURT FINDS THAT THE CALJIC 2.16 COVERS THE MATTER ADEQUATELY WITHOUT ANY ARGUMENT.
IN ADDITION TO THAT, I NOTE THAT THE DEFENSE’ ARGUMENTS AS IT RELATES TO THE CONDUCT OF THE DOG ARE CLEARLY STILL AVAILABLE AND ARE COVERED BY THIS INSTRUCTION. SO 2.16 WILL BE GIVEN WITH THE WORD MURDER INSERTED WHERE APPROPRIATE.
MR. BOYCE: THAT’S OVER OUR OBJECTION, THOUGH, YOUR HONOR.
THE COURT: I THOUGHT I MADE THAT CLEAR. IF I DIDN’T, IT IS CLEARLY OVER YOUR OBJECTION.
ALL RIGHT. 2.20 WAS HELD BACK BECAUSE OF NOT KNOWING WHETHER OR NOT WE WOULD HAVE CATEGORIES THAT NEEDED TO BE DELETED. FIRST OF ALL, IT APPEARS THERE’S NOT GOING TO BE ANY CHARACTER EVIDENCE, SO THAT BRACKETED PORTION NOW COMES OUT.
WE HAVE ADMISSIONS OF UNTRUTHFULNESS. WE HAVE NOT, HOWEVER, SEEN WITNESSES WITH CONVICTIONS FOR FELONY OR CONDUCT AMOUNTING TO A MISDEMEANOR THAT I AM AWARE OF, SO IT WOULD APPEAR THAT THOSE BRACKETED PORTIONS SHOULD COME OUT AS WELL.
AS MODIFIED, 2.20 WILL BE GIVEN.
2.21.1 WILL BE GIVEN, AS WILL 2.21.2.
2.22 WILL BE GIVEN.
NOW, LET’S SEE. THERE WAS A QUESTION THAT I MADE A NOTATION ON WHEN WE INITIALLY WENT THROUGH IT. IT RELATES TO 2.26. AND THAT WAS AS IT RELATED TO APPARENTLY SOME CROSS-EXAMINATION OF THE REPORTER THAT DID THE INITIAL INTERVIEW OF MR. WESTERFIELD.
MR. BOYCE.
MR. BOYCE: YOUR HONOR, THERE WAS CROSS-EXAMINATION OF BOTH RIVER AND MR. MATTHEWS. AND I THINK THE COURT SUSTAINED PART OF MR. FELDMAN’S CROSS-EXAMINATION OF MR. MATTHEWS ON THE SHIELD THEORY. I REMEMBER MISS CUMMINS STANDING UP AND ASSERTING THE SHIELD. AND THE COURT I BELIEVE INTRODUCED HER TO THE JURY AND THEN SUSTAINED THE OBJECTION.
THE COURT: PEOPLE.
MR. DUSEK: I PULLED A COPY OF THE TRANSCRIPT FROM MARK MATTHEWS. THE QUESTION WAS: “WHILE THE VIDEO WAS PLAYING, WERE YOU TAKING NOTES, SIR? WHAT WERE YOU WRITING DOWN.
“OBJECTION ON GROUNDS OF THE PRIVILEGE.”
AND IT WAS SUSTAINED ON THAT SMALL MATTER.
THE COURT: AND THAT’S MY RECOLLECTION AS WELL. MR. MATTHEWS WAS BROUGHT IN FOR ONE PURPOSE AND ONE PURPOSE ONLY, AND THAT WAS TO LAY THE FOUNDATION FOR THE VIDEOTAPE THAT THE JURY ULTIMATELY SAW. I BELIEVE THAT THIS INSTRUCTION GOES TO THE HEART OF THE WITNESS THAT BASICALLY DOES NOT TESTIFY AND REFUSES TO TESTIFY IN THE PRESENCE OF THE JURY. AS A PRACTICAL MATTER IT DOES NOT APPEAR TO BE APPROPRIATE.
NOW, THE WAY I’M GOING TO PRESERVE THIS ONE, SINCE I DON’T HAVE A COPY OF IT HERE, IS NOTE ON THE MINUTE ORDER, PEGGY, FOR TODAY THAT THE DEFENSE IS REQUESTING CALJIC 2.26 AND THE INSTRUCTION WILL NOT BE GIVEN.
MR. BOYCE: YOUR HONOR, JUST FOR THE RECORD, I BELIEVE THE CROSS-EXAMINATION WAS DIRECTED AT MR. MATTHEWS BECAUSE HE WAS A PERCIPIENT WITNESS TO THE EVENTS SURROUNDING MR. WESTERFIELD’S DETENTION AND QUESTIONING BY POLICE OFFICERS AT THE TIME. AND HE WAS ASKED IF HE HAD ANY CONTEMPORANEOUS NOTES IN RELATION TO THAT. SO I THINK —
THE COURT: ALL RIGHT. YOU MADE YOUR RECORD.
THE USE OF THE WORD DETENTION, THOUGH, I FIND TO BE INAPPROPRIATE, GIVEN THE DATE AND THE TIME OF THE INTERVIEW. BUT, AT ANY RATE, YOU’VE MADE YOUR RECORD.
MR. BOYCE: QUESTIONING ANYWAY.
THE COURT: QUESTIONING WOULD BE MORE APPROPRIATE.
ALL RIGHT. 2.23 CAN BE WITHDRAWN SINCE WE HAVE NO WITNESSES WITH FELONY CONVICTIONS.
2.27 WILL BE GIVEN. THE AREA STRUCK OUT BY THE COURT WILL BE NOTED OVER THE OBJECTION OF THE DEFENSE.
MR. FELDMAN: I’M SORRY, YOUR HONOR. THAT’S THE BRACKETED?
THE COURT: BRACKETED PORTIONS.
ALL RIGHT. NOW, 2.51 IS NEXT IN ORDER, AND IT’S MY RECOLLECTION, MISS JONES, THAT YOU HAVE PROFFERED A MODIFIED 2.51.
MS. JONES: WE HAVE, YOUR HONOR. IT’S PAGE 10 OF OUR PROPOSED SPECIALS. SPECIAL INSTRUCTION NUMBER 9.
THE COURT: ALL RIGHT. I’M PULLING THAT AT THIS TIME.
PEOPLE’S RESPONSE.
MR. CLARKE: YES, YOUR HONOR.
HAVING HAD THE CHANCE TO REVIEW THAT, WE BELIEVE THAT CALJIC IS A BETTER STATEMENT. IT’S MORE NEUTRAL AND PRECISE THAN THE ADDITIONAL LANGUAGE THAT THE DEFENSE HAS ADDED.
THE COURT: DO YOU CARE TO COMMENT, MR. BOYCE?
MR. BOYCE: I BELIEVE THE — OUR PROPOSED INSTRUCTION MAKES IT CLEAR THAT MOTIVE ALONE MAY NOT BE USED TO CONVICT THE DEFENDANT, ALTHOUGH THE JURY MAY CONSIDER THE PRESENCE OF MOTIVE AS TENDING TO SHOW THAT THE DEFENDANT IS GUILTY AND ALSO THAT THEY MAY CONSIDER THE ABSENCE OF MOTIVE AS TENDING TO SHOW THAT THE DEFENDANT IS NOT GUILTY.
THE COURT: ALL RIGHT.
FRANKLY, THIS IS ONE OF THOSE THAT STRIKES ME A LITTLE BIT AS NOT TRULY A DEFENSE INSTRUCTION IN THAT IT SPENDS MORE EMPHASIS ON THE ISSUE OF MOTIVE THAN IT APPEARS TO ME IS WARRANTED.
THE JURY IS CLEARLY TOLD IN NO UNCERTAIN TERMS IT’S NOT AN ELEMENT OF THE CRIME. AND, FRANKLY, I FIND 2.51, IF I’M SITTING IN A PERSPECTIVE OF PUTTING ON A DEFENSE HAT, AS A BETTER INSTRUCTION. IT DOESN’T PROHIBIT THE AMOUNT OF ARGUMENT THAT CAN BE MADE ON IT. AND IT CLEARLY SHOWS THAT THE JURY IS NOT BEING FOCUSED IN ON THAT PARTICULAR ISSUE.
AT ANY RATE, I’M GOING TO AT THIS TIME GIVE MY CLERK YOUR PROFFERED INSTRUCTION NUMBER 9 ON PAGE 10 OF YOUR PLEADING AND NOTE THAT IT WILL NOT BE GIVEN. WE WILL GIVE THE STANDARD INSTRUCTION.
NOW, 2.60 AND 2.61 WILL BE GIVEN.
WE HAVE 2.71 THAT WILL BE GIVEN.
NOW, THAT BRINGS US TO 2.72. AND I HAVE MADE A NOTATION THAT I WOULD INTENTIONALLY NOT STRIKE ANYTHING IN THE HOMICIDE AREA. AND EVEN THOUGH WE’RE NOT IN THE HOMICIDE AREA, THIS INSTRUCTION TALKS ABOUT THE DEGREE OF THE CRIME.
PEOPLE’S POSITION BEING THAT THIS IS A FIRST-DEGREE FELONY MURDER CASE, THE DEFENSE HAS EXTENSIVELY PROFFERED PLEADINGS AND ARGUMENTS, IN FACT, BOTH SIDES HAVE, THAT I HAVE READ THAT THE COURT SHOULD GIVE PREMEDITATED, DELIBERATED FIRST-DEGREE. AND I GUESS THIS IS AS GOOD A POINT AS ANY TO DISCUSS IT.
SO I WILL LET YOU MAKE YOUR RECORD FIRST, MR. DUSEK, AND THEN I WILL HEAR FROM THE DEFENSE.
MR. DUSEK: I THINK AS FAR AS 2.72 IS CONCERNED IT SHOULD STRIKE THE LANGUAGE REGARDING DEGREE OF THE CRIME BECAUSE THAT’S NOT AN ISSUE IN THIS CASE. AND EVEN IF IT WERE, THERE IS NO EVIDENCE THAT WE ARE TRYING TO INTRODUCE HIS STATEMENTS TO PROVE THE DEGREE. SO IT’S SIMPLY REMOVING A NON-ENTITY FROM THE JURY’S CONSIDERATION WHICH MAKES IT SIMPLER FOR THEM TO FOLLOW THE LAW.
THE COURT: ALL RIGHT.
MR. BOYCE.
MR. BOYCE: WELL, DO YOU WANT ME TO ADDRESS THE PREMEDITATION, DELIBERATION?
THE COURT: MIGHT AS WELL DO IT RIGHT HERE.
MR. BOYCE: ALL RIGHT.
AS THE COURT’S AWARE, I HAVE ALREADY MADE, EXPLAINED WHY WE WANT THE PREMEDITATION AND DELIBERATION AS AN ALTERNATE THEORY TO FELONY MURDER. WE SUBMITTED ADDITIONAL POINTS AND AUTHORITIES BECAUSE, AS I SAID, OUR POSITION IS THAT MR. WESTERFIELD IS NOT GUILTY AND HE’S NOT THE KILLER. HOWEVER, IF THE JURY FINDS MR. WESTERFIELD WERE THE KILLER, AN ALTERNATE THEORY IS THAT HE’S NOT THE KIDNAPPER. AND BECAUSE THE PROSECUTION HAS LIMITED ITS THEORY TO FELONY MURDER, IT PREVENTS THE DEFENSE FROM — AT LEAST INHIBITS THE DEFENSE FROM PRESENTING THIS ALTERNATIVE DEFENSE.
AND, FURTHER, AS PRESENTED IN THE SUPPLEMENTAL POINTS AND AUTHORITIES, BY CHOOSING A FELONY MURDER THEORY, WHICH INCLUDES ACCIDENTAL AND UNINTENTIONAL KILLINGS, AND KILLERS WHICH WOULD BE — HAVE LESS CULPABILITY THAN A PREMEDITATED AND A DELIBERATED KILLER, IT VIOLATES EQUAL PROTECTION BECAUSE IT RESULTS IN AN ARBITRARY AND IRRATIONAL OFFENSE SELECTION BECAUSE IT ELIMINATES THE MORE SERIOUS OR MORE CULPABLE PREMEDITATED AND DELIBERATED THEORY.
AND WITH THOSE COMMENTS WE WOULD AGAIN REQUEST THE PREMEDITATED AND DELIBERATED INSTRUCTIONS AND THE LESSER, INCLUDED OFFENSES WHICH GO WITH IT.
THE COURT: ALL RIGHT.
MR. DUSEK, ANY COMMENTS?
MR. DUSEK: BRIEFLY, YOUR HONOR.
THIS IS A KIDNAPPING. WHETHER OR NOT SHE WAS TAKEN FROM HER BED, FROM HER BEDROOM, FROM DOWNSTAIRS, FROM OUTSIDE, FROM WANDERING DOWN THE STREETS. THE ONLY WAY IT IS NOT A KIDNAPPING IS IF THE DEFENDANT CAME UPON HER AT THE SCENE AT DEHESA AND KILLED HER THERE. AND THAT JUST BOGGLES THE MIND TO THINK THAT IS EVEN SUPPORTED BY ANY EVIDENCE OR ANY BIZARRE THINKING OF ANY SORT. THIS IS A KIDNAPPING MURDER.
EVEN IF WE HAVE TWO THEORIES OF MURDER, THEY STILL HAVE TO RESOLVE NOT GUILTY ON BOTH BEFORE THEY DROP DOWN ON THE PREMEDITATED MURDER. THERE IS NO INDICATION THAT WE’VE SOUGHT ANY PREMEDITATED THEORY IN THIS CASE. IT’S ALWAYS BEEN A FIRST-DEGREE FELONY MURDER. THE LEGALITY OF DOING THAT HAS BEEN ESTABLISHED FOR A LONG TIME.
THE COURT: I NOTE THAT THIS IS THE COURT THAT MADE THE DECISION IN BARTON THAT ULTIMATELY WAS AFFIRMED BY THE SUPREME COURT. AND WHAT I INDICATED EARLIER IS STILL MY POSITION. AND I CAN ASSURE THE DEFENSE IN THIS MATTER I’VE GIVEN IT A LOT OF CONSCIOUS THOUGHT BECAUSE JURY INSTRUCTIONS IS THE MINEFIELD OF JUDGES BECAUSE OF THE SCRUTINY THAT THEY’RE PLACED UNDER ON APPELLATE REVIEW. BUT I AM ABSOLUTELY SATISFIED THAT THERE IS ONLY ONE THEORY IN THIS CASE BASED ON THE STATE OF THE EVIDENCE WHICH IS NOT GOING TO CHANGE REGARDLESS OF WHETHER THIS EXPERT TESTIFIES OR NOT. AND THAT IS THAT THIS HOMICIDE OCCURRED DURING THE COURSE OF THE KIDNAPPING.
THERE IS EVIDENCE TO ESTABLISH THAT THE CHILD WAS HOME, THAT NO ONE HAD PERMISSION TO TAKE THE CHILD, ADN THERE’S OBVIOUSLY EVIDENCE LINKING MR. WESTERFIELD TO THE CHILD. AND, AS A RESULT, THIS JURY IS EITHER GOING TO FIND THIS WAS A HOMICIDE IN THE COURSE OF THE KIDNAPPING OR IT WASN’T.
SO THE COURT DOES NOT INTEND TO GIVE ANY, IN THIS CASE IT WOULD HAVE BEEN A LESSER, RELATED I SUPPOSE, ALTHOUGH IT’S EQUALLY RELATED IN TERMS OF DEGREE.
I WOULD ALSO INDICATE THAT TO GIVE FIRST-DEGREE PREMEDITATED, DELIBERATED BASED ON THESE FACTS WOULD BE NOTHING SHORT OF CONFUSING TO THE JURY.
AT ANY RATE, THE COURT WILL STRIKE THE PORTION OF 2.72 THAT DEALS WITH THE DEGREE OF THE CRIME.
ALSO I WILL NOTE THAT I WILL NOT GIVE ANY INSTRUCTIONS OTHER THAN FELONY MURDER AND THAT THIS IS ALL — ALL OF THOSE INSTRUCTIONS ARE OVER THE OBJECTION OF THE DEFENSE.
ALL RIGHT. THEN WE GET INTO THE SERIES ON EXPERTS, WHICH IS 2.80. WE GO TO 2.82 REGARDING HYPOTHETICAL QUESTIONS. THEN WE GO TO 2.83, RESOLVING THE CONFLICTING EXPERT TESTIMONY. THEN WE GO TO LAY OPINION WHICH IS IN THE FORM OF 2.81.
MISS JONES, IF I TRIP OVER SOME THAT YOU’VE GOT IN YOUR PACKAGE, PLEASE LET ME KNOW.
MS. JONES: I WAS JUST GOING TO SAY, YOUR HONOR, WE HAVE IN OUR PROPOSED SPECIAL 8, ACTUALLY GO BACK A FEW, AN ABSENCE OF FLIGHT INSTRUCTION THAT WOULD PROBABLY MORE APPROPRIATELY GO WHERE THE COURT IS INSTRUCTING ON MOTIVE.
THE COURT: OKAY. AND THAT NUMBER IS?
MR. BOYCE: 2.52.
MS. JONES: OURS IS PROPOSED NUMBER 8 ON PAGE 8 OF OUR PACKET.
THE COURT: ALL RIGHT. THANK YOU.
ALL RIGHT. THE AUTHORITY CITED GOES INTO PAGE 9.
ALL RIGHT.
ALL RIGHT. PEOPLE.
MR. CLARKE: YES, YOUR HONOR.
IT’S OUR BELIEF THAT THE ADDITIONAL LANGUAGE CONTRARY TO CALJIC ADDS LANGUAGE THAT IS ACTUALLY CONTRARY TO LAW. ESPECIALLY THE CREATE REASONABLE DOUBT LANGUAGE. THE USE NOTE TO THIS PARTICULAR INSTRUCTION ACTUALLY MAKES REFERENCE TO THE FACT THAT THE COURT IS NOT REQUIRED TO GIVE THIS INSTRUCTION EVEN UPON REQUEST. THAT LANGUAGE.
AND IT’S OUR BELIEF THAT AGAIN CALJIC IS A TRIED-AND- TRUE SET OF INSTRUCTIONS AND IS MORE APPROPRIATE IN THIS INSTANCE.
THE COURT: ALL RIGHT.
MR. BOYCE.
MR. BOYCE: YOUR HONOR, CERTAINLY IF THERE WERE FLIGHT IN THIS CASE THE PROSECUTION WOULD BE REQUESTING 2.52. THEY GET 2.06 REGARDING CONCEALMENT OR DESTRUCTION OF EVIDENCE. AND, LIKEWISE, WE SHOULD — THE DEFENSE SHOULD BE ENTITLED TO AN INSTRUCTION ON THE LACK OF FLIGHT IN THIS CASE.
THE JURY CAN CONSIDER THAT AS SHOWING THAT — AS AN INDICATION THAT MR. WESTERFIELD IS NOT GUILTY.
THE COURT: WELL, REASONABLE MINDS MAY DIFFER AS TO WHAT THE STATE OF THE EVIDENCE IS ON THE QUESTION OF FLIGHT. I THINK A VERY CLEAR ARGUMENT BASED ON THE STATE OF THE EVIDENCE COULD BE MADE THAT HE DID IN FACT FLEE AFTER COMMITTING THE CRIME. BUT THE PEOPLE HAVE NOT REQUESTED 2.52. AND TO PUT IN YOUR PROPOSED NUMBER 8 AND TWIST IT THE WAY IT IS TWISTED DOESN’T REFLECT THE STATE OF THE EVIDENCE BY ANY MEANS.
AND AT THIS POINT IN TIME I’M SIMPLY GOING TO HAVE THIS STAPLED TOGETHER, PEG, AS PROFFERED BY THE DEFENSE, NOT GIVEN BY THE COURT. AND THERE IS NO REQUEST TO GIVE 2.52, SO IT WILL NOT BE GIVEN.
ALL RIGHT. 2.90 WILL BE GIVEN.
I HAVE MARKED 2.91 AND 2.92 FOR FURTHER DISCUSSION. I CAN’T REMEMBER IF THESE WERE IN A PACKAGE, MR. BOYCE, OR SIMPLY RAISED BY NUMBER. BUT THEY DEAL WITH EYEWITNESS IDENTIFICATION. AND I’LL HEAR THE PEOPLE’S RESPONSE.
MR. DUSEK: YOUR HONOR, THIS CASE IS NOT BASED UPON EYEWITNESS IDENTIFICATION. NO ONE HAS IDENTIFIED EYEWITNESS. THERE HAS BEEN NO EYEWITNESS IDENTIFICATION OF THE DEFENDANT AS THE PERPETRATOR OF THIS CRIME. BASICALLY HIS LINKAGE TO THIS CRIME IS THROUGH THE PHYSICAL AND CIRCUMSTANTIAL EVIDENCE AND HIS STATEMENTS REGARDING HIS ACTIVITIES THAT DAY. EVERYONE THAT HAS RECOGNIZED HIM HAS SEEN HIM ON T.V., AND THAT’S NOT IDENTIFYING HIM AS A CRIMINAL, JUST AS SOMEONE WHO WAS AT DAD’S AND AT THE VARIOUS LOCATIONS.
THE COURT: MR. BOYCE.
MR. BOYCE: THERE’S VARIOUS IDENTIFICATIONS FROM DAD’S THROUGH THE STRAND TO THE DESERT. SOME OF THOSE — SOME OF THOSE ARE BASED ON WHAT THESE PEOPLE SAW ON T.V. AND OTHER FACTORS THAT ARE SET FORTH IN 2.92 AND ARE RECOGNIZED AS CONSIDERATIONS THAT THE JURY CAN MAKE IN DECIDING THE ACCURACY AND WHETHER OR NOT THIS PARTICULAR MOTOR HOME OR THIS PARTICULAR INDIVIDUAL WAS SEEN AT A PARTICULAR TIME DURING THIS CASE.
AND WE, OF COURSE, WOULD MODIFY 2.92 TO HOWEVER THE COURT WOULD PERMIT US TO DO SO. BUT WE FEEL THAT IS — THOSE TWO INSTRUCTIONS ARE APPROPRIATE.
THE COURT: ALL RIGHT.
2.91 AND 2.92 ARE GIVEN IN CASES IN WHICH THE KEY EVIDENCE IS EYEWITNESS IDENTIFICATION. THIS IS CLEARLY NOT AN EYEWITNESS CASE. THE EYEWITNESS PROBLEM THAT WE MAY OR MAY NOT HAVE AT THE SILVER STRAND IS SOLVED BY YOUR CLIENT IN HIS STATEMENT. HE ADMITS BEING THERE. HE ADMITS THE ENTIRE SCENARIO SURROUNDING THE MONEY BACK AND SO FORTH. WHY WE SPENT SO MUCH ON WHETHER OR NOT THAT RETIRED INDIVIDUAL VOLUNTEER COULD RECOGNIZE YOUR CLIENT I STILL DON’T UNDERSTAND TO THIS DAY BECAUSE YOUR CLIENT HAS ADMITTED BEING THERE.
AS FAR AS THE DESERT IS CONCERNED, WE HAD PEOPLE THAT SAW HIM IN THE DESERT. HE ADMITTED BEING IN THE DESERT. AS A MATTER OF FACT, HE ADMITS THE FACT THAT HE HAD TO BE PULLED OUT OF THE DESERT.
SO EYEWITNESS IDENTIFICATION IS NOT A PART OF THIS CASE AT ALL. AND THERE IS ABSOLUTELY NO NEED ON THE STATE OF THE EVIDENCE TO GIVE 2.91 AND 2.92.
SO, PEGGY, THIS IS ANOTHER ONE I NEED NOTED IN THE DOCKET. I DON’T HAVE A COPY OF IT. BUT I NEED IT NOTED ON THE MINUTE ORDER THAT THE DEFENSE HAS REQUESTED 2.91 AND 2.92, AND THEY WILL NOT BE GIVEN. OVER THE OBJECTION OF THE DEFENSE.
ALL RIGHT. THAT BRINGS US TO THE SERIES THAT TALKS SPECIFICALLY ABOUT GENERAL INTENT AND SPECIFIC INTENT. AND CUSTOMARILY THE COURT GIVES THESE IN THE FOLLOWING ORDER: I WILL GIVE 3.30, NAMELY, AS IT RELATES TO COUNTS — COUNT THREE. AND I THINK WE ALL AGREED, DIDN’T WE, MR. DUSEK, THAT AN ELEMENT OF THE SPECIAL CIRCUMSTANCE IS THE INTENT TO COMMIT THE CRIME OF KIDNAPPING? CORRECT?
MR. DUSEK: TRUE.
THE COURT: THE SPECIAL CIRCUMSTANCE. THE CRIME ITSELF, HOWEVER, DOES NOT REQUIRE SPECIFIC INTENT.
MR. DUSEK: CORRECT.
THE COURT: SO WHAT WE NEED TO DO IS INSURE THAT THE INSTRUCTIONS CLEARLY SHOW THAT. AND I BELIEVE — I’LL HEAR FROM THE DEFENSE, BUT I BELIEVE THAT 3.30 AS IT RELATES TO THE CRIMES OF KIDNAPPING AND POSSESSION OF SEXUALLY EXPLICIT MATERIALS APPEARS TO BE IN PROPER FORM.
MR. DUSEK: I’M SORRY. THE SPECIAL — THE FELONY MURDER REQUIRES A SPECIFIC INTENT TO COMMIT THE KIDNAPPING.
THE COURT: AND THAT’S ON 3.31. WE HAVEN’T GOTTEN THERE YET. SO WHAT WE’RE TALKING ABOUT NOW IS 3.30. AND I THINK WE ARE GOING TO HAVE TO MODIFY THE FORM OF 3.31.
BUT AS TO THE FORM OF 3.30, IT APPEARS TO BE IN PROPER FORM. THAT’S REALLY WHAT I WANT TO HEAR FIRST.
MR. BOYCE: WE ALSO SUBMITTED THE DEFINITION OF POSSESSION AND WILFULLY WHICH GO TO COUNT THREE.
THE COURT: THEY WILL COME UP. THEY ARE ALREADY IN THE PACKAGE BUT IN A DIFFERENT LOCATION.
ALL RIGHT. SO I THINK WE ARE IN AGREEMENT THAT 3.30 IS IN PROPER FORM.
ALL RIGHT. MR. DUSEK, I’LL HEAR FROM YOU WHAT, IF ANY, MODIFICATIONS YOU FEEL NEED TO BE MADE IN 3.31. WE CAN LEAVE IT — I WOULD SUGGEST WE CAN LEAVE IT THE WAY IT IS WITH THE UNDERSTANDING THAT THE SPECIFIC INTENT IS THE SPECIFIC INTENT TO KIDNAP THAT WE ARE REFERRING TO, NOT THE SPECIFIC INTENT TO KILL.
MR. DUSEK: AND I THINK WE SAY THAT IN THE LAST SENTENCE.
THE COURT: YOU SURE DO.
MR. DUSEK: HOW AM I DOING?
THE COURT: I THINK YOU SCORED A GOLD STAR. I READ THE STRAIGHT INSTRUCTION WITHOUT HAVING IT REGISTER.
ALL RIGHT. MR. BOYCE.
MR. BOYCE: I’M SORRY, YOUR HONOR. I WAS — I MISSED MR. DUSEK’S GOLD STAR. BUT I WAS —
THE COURT: HIS GOLD STAR IS FOUND AT THE LAST SENTENCE OF 3.31.
MR. CLARKE: THAT’S BETTER THAN MY A-MINUS ON CELLULAR PHONES.
THE COURT: BUT YOU DID CORRECT THE FACT THAT YOU KEEP LEAVING YOUR GLASSES BEHIND. SO I THINK YOU ARE ABOUT EVEN, MR. CLARKE.
MR. BOYCE: IT’S CORRECT, ISN’T IT?
THE COURT: IT IS A CORRECT STATEMENT, YES.
ALL RIGHT. AND ONCE AGAIN I’LL NOTE THAT AS IN ALL OF THE INSTRUCTIONS THAT DEAL OR WOULD BE USED IN PREMEDITATED, DELIBERATED MURDER, THE COURT IS NOT GIVING THOSE OVER THE OBJECTION OF THE DEFENSE.
ALL RIGHT. 2.02 NOW I KNOW IS GOING TO NEED TO BE MODIFIED BECAUSE THE ONE I HAVE AT LEAST IS IN STANDARD FORM. FIRST OF ALL, THE COURT WILL DELETE MENTAL STATE WHEREVER IT APPEARS.
MR. BOYCE: WELL, WE HAVE KNOWINGLY AND WILFULLY. WE HAVE WILFULLY I BELIEVE, SO WOULDN’T THAT BE —
THE COURT: NO. THAT DOESN’T FIT THAT CATEGORY.
[PAUSE.]
THE COURT: I THINK THE WAY I WOULD WORD THIS IS AS FOLLOWS, AND THEN I’LL HEAR FROM COUNSEL. SENTENCE TWO WOULD READ: HOWEVER, YOU MAY NOT FIND THE DEFENDANT GUILTY OF THE CRIME CHARGED IN COUNT ONE, MURDER, UNLESS THE PROVED CIRCUMSTANCES ARE NOT ONLY, ONE, CONSISTENT WITH THE THEORY THAT THE DEFENDANT HAD THE REQUIRED SPECIFIC INTENT TO KIDNAP BUT COULD NOT BE RECONCILED WITH ANY OTHER RATIONAL CONCLUSION. AND THEN GIVE THE BALANCE OF THE INSTRUCTION BECAUSE WHAT IT DOES IS IT FOCUSES THE JURY ON THE SPECIFIC ISSUE THAT REQUIRES SPECIFIC INTENT.
SO THAT WOULD BE MY PROPOSAL. MR. DUSEK?
MR. DUSEK: LOOKS ACCURATE. IT LOOKS FAIR. AND IT’S TO THE POINT.
THE COURT: ALL RIGHT.
MR. BOYCE.
MR. BOYCE: SUBMITTED, YOUR HONOR.
THE COURT: ALL RIGHT.
AGAIN I’LL NOTE THAT THESE INSTRUCTIONS THAT WOULD HAVE BEEN MODIFIED IN A DIFFERENT FORM FOR FIRST DEGREE ARE OVER THE OBJECTION OF THE DEFENSE. IT WILL BE GIVEN AS MODIFIED.
WE HAVE 4.50. NOW, MISS JONES, THERE’S AN INSTRUCTION I THINK THAT YOU’VE GOT IN HERE THAT DOESN’T TECHNICALLY TALK ALIBI, BUT IT TALKS SOMETHING ELSE. I THINK IT’S YOUR NUMBER 13.
MS. JONES: RIGHT. THAT’S THE PINPOINT FOR THE THEORY OF THE DEFENSE.
THE COURT: ALL RIGHT.
MR. DUSEK.
MR. CLARKE: ACTUALLY, YOUR HONOR, I THINK I CAN ADDRESS THAT.
THE COURT: OKAY. MR. CLARKE.
MR. CLARKE: AFTER READING THAT THIS MORNING, WE BELIEVE IT’S ARGUMENTATIVE AS PHRASED. IT REPRESENTS A FORMULA INSTRUCTION, AND IT’S NOT CORRECT EITHER.
THE COURT: MR. BOYCE.
MR. BOYCE: YOUR HONOR, WE’RE ENTITLED TO A PINPOINT INSTRUCTION I BELIEVE. AND IF THE COURT IS NOT SATISFIED WITH THIS INSTRUCTION, WE’RE WILLING TO MODIFY IT TO HOWEVER THE COURT FEELS THAT IT IS APPROPRIATE IN ORDER TO PINPOINT OUR THEORY OF DEFENSE.
THE COURT: ALL RIGHT.
4.50 IS ABSOLUTELY RIGHT ON POINT. IT GIVES YOU FULL LATITUDE AND LEEWAY TO ARGUE THE ISSUE WITHOUT IN MY OPINION BEING ARGUMENTATIVE. AT ANY RATE, — THAT SOUNDS STUPID. BUT YOU CAN ARGUE IT WITHOUT BEING ARGUMENTATIVE. THE INSTRUCTION IS ARGUMENTATIVE, BUT YOU CAN ARGUE THE CONTENT OF THE INSTRUCTION.
MR. BOYCE: THE PROBLEM THAT I SEE WITH 4.50 IS IT DOESN’T ADDRESS THE ENTOMOLOGICAL EVIDENCE NOR THE FACT THAT MR. WESTERFIELD WAS UNDER CONSTANT POLICE AND MEDIA SURVEILLANCE FROM 8:50 IN THE MORNING ON FEBRUARY 4TH ON.
THE COURT: I HAVE A SNEAKY SUSPICION MR. FELDMAN INTENDS TO SPEND SOME TIME DISCUSSING THAT. THAT INSTRUCTION IS ADEQUATE.
NUMBER 13 WILL NOT BE GIVEN BY THE COURT. IN LIEU THEREOF, THE COURT WILL GIVE 4.50.
MR. BOYCE: YOUR HONOR, —
THE COURT: YES.
MR. BOYCE: YOUR HONOR, THERE IS ONE OTHER INSTRUCTION THAT — WHAT WE ATTEMPTED TO MODIFY, BUT THE TYPIST CONTINUES TO LEAVE OUT SPECIFIC INTENT, AND THAT IS CALJIC 4.21. WE ARE SUBMITTING THE CALJIC INSTRUCTION WITH MODIFICATIONS THAT COMPORT WITH THIS CASE. IT’S THE INTOXICATION INSTRUCTION. INTOXICATION EVIDENCE WAS — THERE WERE WITNESSES WHO DESCRIBED MR. WESTERFIELD AS INTOXICATED AS HE LEFT DAD’S BAR. THAT EVIDENCE SHOULD BE CONSIDERED BY THE JURY IN WHETHER OR NOT HE HAD THE SPECIFIC INTENT — WOULD GO TO THE SPECIFIC INTENT TO COMMIT THE KIDNAPPING UNDER THE FELONY MURDER DOCTRINE.
THE COURT: ALL RIGHT.
DO YOU HAVE THE PROFFERED INSTRUCTIONS?
MR. BOYCE: IT’S 4.21.
THE COURT: NO. I KNOW. DO YOU HAPPEN TO HAVE A COPY OF IT IS WHAT I’M ASKING.
MR. BOYCE: NO, I DON’T. WE HAVE SUBSTANTIALLY — THE INSTRUCTION IS JUST — DOES NOT HAVE THE SPECIFIC INTENT IN HERE.
THE COURT: WELL, 4.21.1 IS APPLICABLE WHERE YOU HAVE A MIXTURE OF GENERAL- AND SPECIFIC-INTENT CRIMES. AND THEN 4.22 IS THE DEFINING TERM. AND SO THOSE WOULD BE APPARENTLY THE TWO THAT WOULD BE CALLED FOR.
PEOPLE. ANY COMMENT?
MR. DUSEK: USING THE USE NOTES IN CONJUNCTION WITH THE DEFENSE PRESENTED IN THIS CASE IS THAT IT WASN’T ME, I DIDN’T DO IT, IT DOESN’T APPEAR THAT THE VOLUNTARY INTOXICATION ISSUE IS PROPER FOR THIS JURY.
MR. BOYCE: WE’RE ENTITLED TO ARGUE OUR ALTERNATIVE THEORIES, YOUR HONOR.
MR. DUSEK: THEY WILL NOT.
THE COURT: WELL, THE REQUIREMENT UNDER THE FELONY MURDER THEORY IS THAT HE HAD THE SPECIFIC INTENT TO COMMIT THE CRIME OF KIDNAPPING. THERE IS EVIDENCE BEFORE THIS COURT BOTH IN THE FORM OF THE STATEMENT OF MR. WESTERFIELD PLUS THE ANALYSIS DONE BY A NUMBER OF INDEPENDENT WITNESSES THAT HE WAS UNDER THE INFLUENCE AT OR ABOUT THE TIME THAT THE CHILD SHOWS UP MISSING.
I ALMOST SEE THAT, MR. DUSEK, AS FATAL ERROR IF I DON’T GIVE IT. I MEAN, FRANKLY.
MR. DUSEK: PERHAPS THIS SHOULD BE RESERVED UNTIL AFTER WE HEAR THE DEFENSE’ ARGUMENT. IF THEY ARGUE IT, THEN THEY CAN GIVE IT.
MR. BOYCE: I DON’T BELIEVE IT REQUIRES ARGUMENT, YOUR HONOR. THERE IS EVIDENCE OF THAT, AND THE COURT IS REQUIRED TO GIVE IT SUA SPONTE. IN THIS CASE WE ARE REQUESTING IT.
THE COURT: I AGREE, MR. BOYCE. I SEE IT AS A SUA SPONTE INSTRUCTION. HOWEVER, IT’S GOING TO NEED TO BE MODIFIED. SO WHAT I AM GOING TO DO AND WHERE I WOULD PUT THIS INSTRUCTION IS BEFORE I GIVE 4.50. SINCE WE’LL HAVE MONDAY AVAILABLE, I’M GOING TO ASK, MR. BOYCE, THAT YOU BRING IN MODIFIED 4.21.1, AND 4.22 IS PRETTY STANDARD, AS THE DEFENSE IS GOING TO PROFFER IT. AND I AGREE, I THINK IT’S — IT WOULD BE FATAL FOR THE COURT NOT TO GIVE IT. SO I’LL — WE’LL CHAT ABOUT — WELL, I GUESS THERE’S REALLY NOT ANY NEED FOR US TO GET TOGETHER ON MONDAY JUST FOR THAT PURPOSE, SO I WILL EXPECT IT ON TUESDAY MORNING.
ALL RIGHT. SO I WILL SHOW THIS OVER THE OBJECTION OF THE PEOPLE.
I’LL GIVE 4.21.1 AND 4.22, AND I WILL GIVE THOSE BEFORE 4.50.
MR. CLARKE: COULD WE JUST SEE THOSE WITH A LITTLE MORE LEAD TIME THAN TODAY, YOUR HONOR?
THE COURT: AS A MATTER OF FACT, IF YOU WANT, YOU CAN PREPARE YOUR OWN COPIES. I THINK IT WILL BE PRETTY STRAIGHTFORWARD BECAUSE THE ONLY WORDING WE HAVE TO BE CONCERNED ABOUT IS AS IT RELATES TO THE SPECIAL CIRCUMSTANCE.
YOU KNOW, I MEAN THEREIN LIES THE DANGER. THAT’S THE REASON IF YOU WOULD LIKE TO DO YOUR OWN WORDING, I WILL PICK BETWEEN THE TWO OR MODIFY IT.
MR. CLARKE: BUT IT’S NOT 4.21, IT’S .21.1 AND .22.
THE COURT: YES. BECAUSE WE HAVE A MIXTURE OF GENERAL AND SPECIFIC INTENT HERE.
OKAY. THAT BRINGS US INTO THE DISCUSSION OF THE SUBSTANTIVE OFFENSES. AGAIN I’LL NOTE THAT THESE ARE OVER THE OBJECTION OF THE DEFENSE INASMUCH AS THEY WILL NOT RELATE TO A LESSER OR EQUALLY SUFFICIENT THEORY OF FIRST DEGREE OF PREMEDITATED MURDER.
8.10 I HAD DEFERRED A MODIFICATION FOR ARGUMENT AND THAT IS THE THIRD PARAGRAPH, BECAUSE IN FELONY MURDER IT CAN BE AN ACCIDENT. SO IT APPEARS THAT THAT SENTENCE IS NOT APPROPRIATE.
DOES THE DEFENSE WANT TO MAKE AN ARGUMENT OTHER THAN THE STANDARD ARGUMENT THAT YOU’VE MADE THUS FAR?
MR. BOYCE: WE WOULD SUBMIT IT, YOUR HONOR.
THE COURT: ALL RIGHT. IT APPEARS THAT THAT NEEDS TO BE DELETED BASED ON THE COURT’S RULING AS IT RELATES TO FELONY MURDER.
MR. DUSEK: THERE ARE TWO LINES THAT ARE REMOVED.
THE COURT: ELEMENT NUMBER TWO IS REMOVED. AND THE NUMBER THREE IS CONVERTED TO A TWO.
MR. CLARKE: AND THE FIRST SENTENCE OF THE THIRD PARAGRAPH IS DELETED AS WELL?
THE COURT: THE THIRD PARAGRAPH IN ITS — WELL, THE THIRD PARAGRAPH IS ONE SENTENCE LONG ON MY 8.10.
MR. CLARKE: ACTUALLY I MEAN THE PORTION THAT SAYS A KILLING IS UNLAWFUL IF. THAT SENTENCE. OR ARE WE LOOKING AT DIFFERENT VERSIONS?
THE COURT: WE MAY BE LOOKING AT DIFFERENT VERSIONS. ONCE I TAKE OUT THE SENTENCE THAT IS IN PARAGRAPH THREE, I COME RIGHT TO THE ELEMENTS.
MR. CLARKE: YES. ALL RIGHT. I THINK WE’RE SAYING THE SAME THING.
THE COURT: THEN I TAKE OUT ELEMENT NUMBER TWO AND RENUMBER ELEMENT NUMBER THREE NUMBER TWO.
MR. CLARKE: IT ALSO APPEARS WE HAVE TO TAKE OUT THE WORD UNLAWFULLY IN THE SECOND PARAGRAPH.
THE COURT: ALL RIGHT. THAT IS ABSOLUTELY CORRECT.
ALL RIGHT. THEN WE HAVE 8.21.
MR. BOYCE: YOUR HONOR, UNDER 8.10 WE NEED TO TAKE OUT OR ATTEMPTED COMMISSION ALSO IN LINE. . .
THE COURT: ALL RIGHT. YOU’RE CORRECT. PEOPLE CONCUR?
MR. DUSEK: YES.
THE COURT: ALL RIGHT.
THEN WE HAVE 8.21. AGAIN WE NEED TO TAKE OUT IN THE BRACKETED PORTION OR ATTEMPTED COMMISSION.
MR. CLARKE: WAS THE WORD UNLAWFUL IN THE SECOND WORD OF THE FIRST PARAGRAPH?
THE COURT: THAT’S RIGHT. AND THEN THE LAST SENTENCE OR ATTEMPTED COMMISSION COMES OUT AS WELL.
MS. JONES: YOUR HONOR, OUR SPECIAL NUMBER 12 ADDS A PARAGRAPH.
THE COURT: ALL RIGHT. LET ME —
MS. JONES: THAT’S PAGE 14 OF OUR PACKET TODAY.
THE COURT: THANK YOU.
[PAUSE.]
THE COURT: PEOPLE DESIRE TO BE HEARD?
MR. CLARKE: YES. IT MISSTATES THE LAW, YOUR HONOR. THAT APPLIES TO THE SPECIAL CIRCUMSTANCE BUT NOT TO THE CRIME OF MURDER. AND IT’S ACTUALLY WRONG ABOUT THE SPECIAL, BUT I THINK WE CAN APPROACH THAT LATER.
THE COURT: ALL RIGHT. I WILL HOLD IT OUT AT THIS POINT IN TIME, BUT IT DOESN’T APPEAR TO BE AN APPROPRIATE MODIFICATION OF 8.21. IF WE ARE GOING TO DISCUSS IT IN ANOTHER LOCATION, WE WILL LEAVE IT.
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